CLA-2 OT:RR:CTF:TCM H063640 GC
Martha De Castro
Customs Compliance Specialist
Bed Bath & Beyond Procurement Co., Inc.
650 Liberty Avenue
Union, New Jersey 07083
RE: Tariff classification of a wreath
Dear Ms. Castro:
This is in response to your letter of April 21, 2009, in which you request U.S. Customs and Border Protection (CBP) to issue a binding ruling on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a Pumpkin/Berry wreath. Your ruling request was forwarded to this office from the National Commodity Specialist Division in New York for reply.
FACTS:
The wreath at issue is identified as the “Pumpkin/Berry Wreath” (sku: 16573469). It is composed of a 1 ¼ inch-thick base of natural twigs wound in an 18 inch diameter bundle. Numerous wood twigs protrude from the base. The front of the wreath is decorated with 3 artificial orange pumpkins composed of foam measuring approximately 2 ½ inches wide, 5 bunches of artificial red berries also composed of foam, and green polyester leaves. The foam pumpkins and berries, along with green polyester leaves, are glued onto plastic stems that are attached to the circular base with glue. When viewed from the front, the base of natural twigs, along with the woody twigs protruding from the base, creates a visibly noticeable backdrop for the colorful pumpkins, berries and leaves.
Approximately 35 percent of the material cost of the wreath is from the foam, followed by the polyester (30 percent), natural twigs (20 percent) and plastic (10 percent) and the wire (5 percent). No information was submitted regarding the relative weight of the constituent materials, but a visual inspection indicates that the most bulk and mass is provided by the natural twigs, followed by foam, polyester, plastic and wire.
ISSUES:
Whether the subject wreath is considered an other article, made directly
to shape from plaiting materials or made up from articles of heading 4601, of heading 4602, HTSUS, or artificial flowers, foliage and fruit of heading 6702, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
4602 Basketwork, wickerwork and other articles, made directly to shape from plating materials or made up from articles of heading 4601; articles of loofah:
Articles of vegetable materials:
4602.19 Other:
Other:
Other:
4602.19.60 Wickerwork
* * *
6702 Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage and fruit:
6702.10 Of plastics:
6702.10.20 Assembled by binding with flexible materials such as wire, paper, textile materials, or foil, or by gluing or by similar methods
Because the instant wreath is composed of different materials that are prima facie classifiable in different headings (plaiting materials of heading 4602, HTSUS, and artificial foliage of heading 6702, HTSUS), GRI 3 is implicated. In particular, GRI 3(b) states, in pertinent part:
Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
In understanding the language of the HTSUS, the ENs may be utilized. The ENs, though not dispositive or legally binding, may provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
In its discussion concerning “essential character,” the EN to GRI 3(b) states that:
The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
CBP has classified similar wreaths in heading 4602, HTSUS, and heading 6702, HTSUS, on a case-by-case analysis based on whether the plaiting material base or the artificial foliage imparts the given wreath with its essential character. See, e.g., New York Ruling Letter (NY) N005692, dated February 16, 2007 and NY H87004, dated January 30, 2002 (classified wreaths in heading 4602, HTSUS); NY N047158, dated January 15, 2009 and NY B86828, dated July 16, 1997 (classifying similar wreaths in heading 6702, HTSUS).
The relative cost, weight and value of the constituent materials do not distinguish one particular component as imparting the instant wreath with its essential character. Thus, the role of each constituent material in relation to the use of the wreath will be the focus of determining which component imparts the wreath with its essential character. Thus, in this case, the most important factor in determining the essential character of the wreath is the role of the constituent materials in relation to the use of the finished wreath, which is as a decorative item. See also Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278, 1295-1356 (CIT 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007) (Home Depot).
In its discussion of the GRI 3(b) analysis, the Court of International Trade (CIT) in Home Depot notes:
Case law provides other possible considerations for an essential character inquiry. This court's predecessor, the United States Customs Court ("Customs Court"), stated that "the best evidence of the essential character of the article is the representative sample." United China & Glass Co. v. United States, 293 F. Supp. 734, 61 Cust. Ct. 386, 389, C.D. 3637 (1968). In its analysis, the United China court also considered the article's "name… other recognized names… invoice and catalogue descriptions… size, primary function, uses… and ordinary common sense." Id. (emphasis added). This Court concludes that this exemplary list is useful for the forthcoming analyses. In a subsequent decision, the Customs Court explained that "the character of an article is that attribute which strongly marks or serves to distinguish what it is. Its essential character is that which is indispensable to the structure, core or condition of the article, i.e., what it is." A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383, C.D. 4218 (1971). The court reiterated, however, that in an essential character determination, "the situation must be reviewed as a whole." Id. at 384 (citation omitted).
Home Depot, 427 F.Supp.2d at 1292-1923
In Home Depot, the CIT classified lighting fixtures partly of metal and glass, wood or plastic according to their glass component. In so doing, the court held that the glass component imparted a lighting fixture with its essential character because the component, among other attributes, had greater visible area, weight, contributed to the decorative appearance and structure, and gave the structure its name.
In the instant matter, the artificial foliage and the plating materials contribute to the decorative appearance of the wreath. However, the plaiting materials have a greater visible surface area, weigh more, and provide the circular structure of the wreath upon which the artificial foliage can be placed. The fact that the plaiting materials further the decorative nature of the subject merchandise by making a noticeable contribution to the visual impact of the wreath as a base and backdrop for the colorful artificial foliage and by providing the wreath with its circular structure, we find that it provides the wreath with its essential character.
HOLDING:
By application of GRI 3(b), the subject “Pumpkin/Berry Wreath” is classified in heading 4602, HTSUS, which provides for: “[b]asketwork, wickerwork and other articles, made directly to shape from plating materials or made up from articles of heading 4601; articles of loofah”. It is specifically provided for under subheading 4602.19.60, HTSUS, which provides for: “[b]asketwork, wickerwork and other articles, made directly to shape from plating materials or made up from articles of heading 4601; articles of loofah: Articles of vegetable materials: Other: Other: Other: Wickerwork”. The column one, general rate of duty for merchandise of subheading 4602.19.60, HTSUS, is free.
Duty rates are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch